[Introduced January 26, 2011; referred to the Committee on the
Judiciary.]

____________

A BILL to amend and reenact §60A-1-101 of the Code of West
Virginia, 1931, as amended; to amend and reenact §60A-2-204 of
said code; to amend and reenact §60A-4-402 and §60A-4-407 of
said code; and to amend and reenact §61-7-7 of said code, all
relating to criminalizing sale and use of synthetic
cannabinoids; defining terms; including synthetic cannabinoids
in Schedule I drugs and other substances; establishing
penalties; providing for conditional discharge for first
offense of possession; and providing that persons convicted of
possession of synthetic cannabinoid are not prohibited from
possessing a firearm.

Be it enacted by the Legislature of West Virginia:

That §60A-1-101 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; that §60A-2-204 of said code be
amended and reenacted; that §60A-4-402 and §60A-4-407 of said code
be amended and reenacted; and that §61-7-7 of said code be amended
and reenacted, all to read as follows:

CHAPTER 60A. UNIFORM CONTROLLED SUBSTANCES ACT.

ARTICLE 1. DEFINITIONS.

§60A-1-101. Definitions.

As used in this act:

(a) "Administer" means the direct application of a controlled
substance whether by injection, inhalation, ingestion or any other
means to the body of a patient or research subject by:

(1) A practitioner (or, in his presence, by his authorized
agent); or

(2) The patient or research subject at the direction and in
the presence of the practitioner.

(b) "Agent" means an authorized person who acts on behalf of
or at the direction of a manufacturer, distributor or dispenser.
It does not include a common or contract carrier, public
warehouseman or employee of the carrier or warehouseman.

(c) "Bureau" means the "Bureau of Narcotics and Dangerous
Drugs, United States Department of Justice" or its successor
agency.

(d) "Controlled substance" means a drug, substance or
immediate precursor in Schedules I through V of article two.

(e) "Counterfeit substance" means a controlled substance
which, or the container or labeling of which, without
authorization, bears the trademark, trade name or other identifying
mark, imprint, number or device, or any likeness thereof, of a
manufacturer, distributor or dispenser other than the person who in
fact manufactured, distributed or dispensed the substance.

(f) "Imitation controlled substance" means: (1) A controlled
substance which is falsely represented to be a different controlled
substance; (2) a drug or substance which is not a controlled
substance but which is falsely represented to be a controlled
substance; or (3) a controlled substance or other drug or substance
or a combination thereof which is shaped, sized, colored, marked,
imprinted, numbered, labeled, packaged, distributed or priced so as
to cause a reasonable person to believe that it is a controlled
substance.

(g) "Deliver" or "delivery" means the actual, constructive or
attempted transfer from one person to another of: (1) A controlled
substance, whether or not there is an agency relationship; (2) a
counterfeit substance; or (3) an imitation controlled substance.

(h) "Dispense" means to deliver a controlled substance to an
ultimate user or research subject by or pursuant to the lawful
order of a practitioner, including the prescribing, administering,
packaging, labeling or compounding necessary to prepare the
substance for that delivery.

(i) "Dispenser" means a practitioner who dispenses.

(j) "Distribute" means to deliver, other than by administering
or dispensing, a controlled substance, a counterfeit substance or
an imitation controlled substance.

(k) "Distributor" means a person who distributes.

(l) "Drug" means: (1) Substances recognized as drugs in the
official "United States Pharmacopoeia, official Homeopathic
Pharmacopoeia of the United States or official National Formulary",
or any supplement to any of them; (2) substances intended for use
in the diagnosis, cure, mitigation, treatment or prevention of
disease in man or animals; (3) substances (other than food)
intended to affect the structure or any function of the body of man
or animals; and (4) substances intended for use as a component of
any article specified in clause (1), (2) or (3) of this
subdivision. It does not include devices or their components,
parts or accessories.

(m) "Immediate precursor" means a substance which the "West
Virginia Board of Pharmacy" (hereinafter in this act referred to as
the state Board of Pharmacy) has found to be and by rule designates
as being the principal compound commonly used or produced primarily
for use and which is an immediate chemical intermediary used or
likely to be used in the manufacture of a controlled substance, the
control of which is necessary to prevent, curtail or limit
manufacture.

(n) "Manufacture" means the production, preparation,
propagation, compounding, conversion or processing of a controlled
substance, either directly or indirectly or by extraction from
substances of natural origin, or independently by means of chemical
synthesis, or by a combination of extraction and chemical
synthesis, and includes any packaging or repackaging of the
substance or labeling or relabeling of its container, except that
this term does not include the preparation, compounding, packaging
or labeling of a controlled substance:

(1) By a practitioner as an incident to his administering or
dispensing of a controlled substance in the course of his
professional practice; or

(2) By a practitioner, or by his authorized agent under his
supervision, for the purpose of, or as an incident to, research,
teaching or chemical analysis and not for sale.

(o) "Marijuana" means all parts of the plant "Cannabis sativa
L.", whether growing or not; the seeds thereof; the resin extracted
from any part of the plant; and every compound, manufacture, salt,
derivative, mixture or preparation of the plant, its seeds or
resin. It does not include the mature stalks of the plant, fiber
produced from the stalks, oil or cake made from the seeds of the
plant, any other compound, manufacture, salt, derivative, mixture
or preparation of the mature stalks (except the resin extracted
therefrom), fiber, oil or cake, or the sterilized seed of the plant
which is incapable of germination.

(p) "Narcotic drug" means any of the following, whether
produced directly or indirectly by extraction from substances of
vegetable origin or independently by means of chemical synthesis,
or by a combination of extraction and chemical synthesis:

(1) Opium and opiate and any salt, compound, derivative or
preparation of opium or opiate.

(2) Any salt, compound, isomer, derivative or preparation
thereof which is chemically equivalent or identical with any of the
substances referred to in paragraph (1) of this subdivision, but
not including the isoquinoline alkaloids of opium.

(3) Opium poppy and poppy straw.

(4) Coca leaves and any salt, compound, derivative or
preparation of coca leaves and any salt, compound, isomer,
derivative or preparation thereof which is chemically equivalent or
identical with any of these substances, but not including
decocainized coca leaves or extractions of coca leaves which do not
contain cocaine or ecgonine.

(q) "Opiate" means any substance having an addiction-forming
or addiction-sustaining liability similar to morphine or being
capable of conversion into a drug having addiction-forming or
addiction-sustaining liability. It does not include, unless
specifically designated as controlled under section two hundred
one, article two of this chapter, the dextrorotatory isomer of 3-methoxy-n-methylmorphinan and its salts (dextromethorphan). It
does not include its racemic and levorotatory forms.

(r) "Opium poppy" means the plant of the species "Papaver
somniferum L.", except its seeds.

(s) "Person" means individual, corporation, government or
governmental subdivision or agency, business trust, estate, trust,
partnership or association, or any other legal entity.

(t) "Placebo" means an inert medicament or preparation
administered or dispensed for its psychological effect, to satisfy
a patient or research subject or to act as a control in
experimental series.

(u) "Poppy straw" means all parts, except the seeds, of the
opium poppy after mowing.

(v) "Practitioner" means:

(1) A physician, dentist, veterinarian, scientific
investigator or other person licensed, registered or otherwise
permitted to distribute, dispense, conduct research with respect
to, or to administer a controlled substance in the course of
professional practice or research in this state.

(2) A pharmacy, hospital or other institution licensed,
registered or otherwise permitted to distribute, dispense, conduct
research with respect to, or to administer a controlled substance
in the course of professional practice or research in this state.

(w) "Production" includes the manufacture, planting,
cultivation, growing or harvesting of a controlled substance.

(x) "State", when applied to a part of the United States,
includes any state, district, commonwealth, territory, insular
possession thereof and any area subject to the legal authority of
the United States of America.

(y) “Synthetic cannabinoid” means any chemical compound that
contains "Synthetic cannabinoid agonists or piperazines" or any
chemical compound that contains Benzylpiperazine;
Trifluoromethylphenylpiperazine; 1,1-Dimethylheptyl-11-hydroxytetrahydrocannabinol; 1-Butyl-3-(1-naphthoyl)indole; 1-Pentyl-3-(1-naphthoyl)indole; dexanabinol; or 2-[(1R,3S)-3-hydroxycyclohexyl]-5-(2-methyloctan-2-yl)phenol). The term does not
include synthetic cannabinoids that require a prescription, are
approved by the United States Food and Drug Administration, and are
dispensed in accordance with state or federal law;

(y)(z) "Ultimate user" means a person who lawfully possesses
a controlled substance for his own use or for the use of a member
of his household or for administering to an animal owned by him or
by a member of his household.

§60A-2-204. Schedule I.

(a) Schedule I shall consist of the drugs and other
substances, by whatever official name, common or usual name,
chemical name, or brand name designated, listed in this section.

(b) Opiates. Unless specifically excepted or unless listed in
another schedule, any of the following opiates, including their
isomers, esters, ethers, salts and salts of isomers, esters and
ethers, whenever the existence of such isomers, esters, ethers and
salts is possible within the specific chemical designation (for
purposes of subdivision (34) of this subsection only, the term
isomer includes the optical and geometric isomers):

(c) Opium derivatives. -- Unless specifically excepted or
unless listed in another schedule, any of the following opium
derivatives, its salts, isomers and salts of isomers whenever the
existence of such salts, isomers and salts of isomers is possible
within the specific chemical designation:

(1) Acetorphine;

(2) Acetyldihydrocodeine;

(3) Benzylmorphine;

(4) Codeine methylbromide;

(5) Codeine-N-Oxide;

(6) Cyprenorphine;

(7) Desomorphine;

(8) Dihydromorphine;

(9) Drotebanol;

(10) Etorphine (except HCl Salt);

(11) Heroin;

(12) Hydromorphinol;

(13) Methyldesorphine;

(14) Methyldihydromorphine;

(15) Morphine methylbromide;

(16) Morphine methylsulfonate;

(17) Morphine-N-Oxide;

(18) Myrophine;

(19) Nicocodeine;

(20) Nicomorphine;

(21) Normorphine;

(22) Pholcodine;

(23) Thebacon.

(d) Hallucinogenic substances. -- Unless specifically excepted
or unless listed in another schedule, any material, compound,
mixture or preparation, which contains any quantity of the
following hallucinogenic substances, or which contains any of its
salts, isomers and salts of isomers, whenever the existence of such
salts, isomers, and salts of isomers is possible within the
specific chemical designation (for purposes of this subsection
only, the term "isomer" includes the optical, position and
geometric isomers):

(22) Peyote; meaning all parts of the plant presently
classified botanically as Lophophora williamsii Lemaire, whether
growing or not, the seeds thereof, any extract from any part of
such plant, and every compound, manufacture, salts, derivative,
mixture or preparation of such plant, its seeds or extracts;

(23) N-ethyl-3-piperidyl benzilate;

(24) N-methyl-3-piperidyl benzilate;

(25) Psilocybin;

(26) Psilocyn;

(27) Synthetic cannabinoid;

(27)(28) Tetrahydrocannabinols; synthetic equivalents of the
substances contained in the plant, or in the resinous extractives
of Cannabis, sp. and/or synthetic substances, derivatives and their
isomers with similar chemical structure and pharmacological
activity such as the following:

delta-1 Cis or trans tetrahydrocannabinol, and their optical
isomers;

delta-6 Cis or trans tetrahydrocannabinol, and their optical
isomers;

delta-3,4 Cis or trans tetrahydrocannabinol, and its optical
isomers;

(Since nomenclature of these substances is not internationally
standardized, compounds of these structures, regardless of
numerical designation of atomic positions covered.)

(29)(30) Pyrrolidine analog of phencyclidine; some trade or
other names: 1-(1-phenylcyclohexyl)-pyrrolidine, PCPy, PHP;

(30)(31) Thiophene analog of phencyclidine; some trade or
other names: 1-[1-(2-thienyl)-cyclohexyl]-piperidine, 2-thienylanalog of phencyclidine; TPCP, TCP;

(31)(32) 1[1-(2-thienyl)cyclohexyl]pyrroldine; some other
names: TCPy.

(e) Depressants. Unless specifically excepted or unless
listed in another schedule, any material, compound, mixture, or
preparation which contains any quantity of the following substances
having a depressant effect on the central nervous system, including
its salts, isomers and salts of isomers whenever the existence of
such salts, isomers and salts of isomers is possible within the
specific chemical designation:

(1) Mecloqualone;

(2) Methaqualone.

(f) Stimulants. Unless specifically excepted or unless listed
in another schedule, any material, compound, mixture, or
preparation which contains any quantity of the following substances
having a stimulant effect on the central nervous system, including
its salts, isomers, and salts of isomers:

(1) Aminorex; some other names: aminoxaphen; 2-amino-5-phenyl-2-oxazoline; or 4,5-dihydro-5-phenyl-2-oxazolamine;

(2) Cathinone; some trade or other names: 2-amino-1-phenyl-1-propanone, alpha-aminopropiophenone, 2-aminopropiophenone, and
norephedrone;

(7) N,N-dimethylamphetemine; also known as N,N-alpha-trimethyl-benzeneethanamine; N,N-alpha-trimethylphenethylamine. (g) Temporary listing of substances subject to emergency
scheduling. Any material, compound, mixture or preparation which
contains any quantity of the following substances:

(1) Who is subject to article 3 to distribute or dispense a
controlled substance in violation of section 308;

(2) Who is a registrant, to manufacture a controlled substance
not authorized by his registration, or to distribute or dispense a
controlled substance not authorized by his registration to another
registrant or other authorized person;

(3) To refuse or fail to make, keep, or furnish any record,
notification, order form, statement, invoice, or information
required under this act;

(4) To refuse any entry into any premises for any inspection
authorized by this act; or

(5) Knowingly to keep or maintain any store, shop, warehouse,
dwelling, building, vehicle, boat, aircraft, or other structure or
place, which is resorted to by persons using controlled substances
in violation of this act for the purpose of using these substances,
or which is used for keeping or selling them in violation of this
act.

(b) Any person who violates this section is guilty of a
misdemeanor, and, upon conviction, may be confined in the county regional jail for not less than six months nor more than one year,
or fined not more than twenty-five thousand dollars, or both.

(c) Notwithstanding any other provision of this act to the
contrary, any first offense for distributing less than 15 grams of
marihuana or synthetic cannabinoid without any remuneration shall
be disposed of under section 407.

§60A-4-407. Conditional discharge for first offense of possession.

(a) Whenever any person who has not previously been convicted
of any offense under this chapter or under any statute of the
United States or of any state relating to narcotic drugs,
marihuana, synthetic cannabinoid, or stimulant, depressant, or
hallucinogenic drugs, pleads guilty to or is found guilty of
possession of a controlled substance under section 401(c), the
court, without entering a judgment of guilt and with the consent of
the accused, may defer further proceedings and place him or her on
probation upon terms and conditions. Upon violation of a term or
condition, the court may enter an adjudication of guilt and proceed
as otherwise provided. Upon fulfillment of the terms and
conditions, the court shall discharge the person and dismiss the
proceedings against him or her. Discharge and dismissal under this
section shall be without adjudication of guilt and is not a
conviction for purposes of this section or for purposes of
disqualifications or disabilities imposed by law upon conviction of
a crime, including the additional penalties imposed for second or
subsequent convictions under section 408. The effect of the
dismissal and discharge shall be to restore the person in
contemplation of law to the status he or she occupied prior to
arrest and trial. No person as to whom a dismissal and discharge
have been effected shall be thereafter held to be guilty of
perjury, false swearing, or otherwise giving a false statement by
reason of his or her failure to disclose or acknowledge his or her
arrest or trial in response to any inquiry made of him or her for
any purpose. There may be only one discharge and dismissal under
this section with respect to any person.

(b) After a period of not less than six months which shall
begin to run immediately upon the expiration of a term of probation
imposed upon any person under this chapter, the person may apply to
the court for an order to expunge from all official records all
recordations of his or her arrest, trial, and conviction, pursuant
to this section. If the court determines after a hearing that the
person during the period of his or her probation and during the
period of time prior to his or her application to the court under
this section has not been guilty of any serious or repeated
violation of the conditions of his or her probation, it shall order
the expungement.

(c) Notwithstanding any provision of this code to the
contrary, any person prosecuted pursuant to the provisions of this
article whose case is disposed of pursuant to the provisions of
this section shall be liable for any court costs assessable against
a person convicted of a violation of section 401(c) of this
article. Payment of such costs may be made a condition of
probation.

The costs assessed pursuant to this section, whether as a term
of probation or not, shall be distributed as other court costs in
accordance with section two, article three, chapter fifty, section
four, article two-a, chapter fourteen, section four, article
twenty-nine, chapter thirty and sections two, seven and ten,
article five, chapter sixty-two of this code.

(a) Except as provided in this section, no person shall
possess a firearm, as such is defined in section two of this
article, who:

(1) Has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year;

(2) Is habitually addicted to alcohol;

(3) Is an unlawful user of or habitually addicted to any
controlled substance;

(4) Has been adjudicated as a mental defective or who has been
involuntarily committed to a mental institution pursuant to the
provisions of chapter twenty-seven of this code: Provided, That
once an individual has been adjudicated as a mental defective or
involuntarily committed to a mental institution, he or she shall be
duly notified that they are to immediately surrender any firearms
in their ownership or possession: Provided, however, That the
mental hygiene commissioner or circuit judge shall first make a
determination of the appropriate public or private individual or
entity to act as conservator for the surrendered property;

(5) Is an alien illegally or unlawfully in the United States;

(6) Has been discharged from the Armed Forces under
dishonorable conditions;

(7) Is subject to a domestic violence protective order that:

(A) Was issued after a hearing of which such person received
actual notice and at which such person had an opportunity to
participate;

(B) Restrains such person from harassing, stalking or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that would
place an intimate partner in reasonable fear of bodily injury to
the partner or child; and

(C)(i) Includes a finding that such person represents a
credible threat to the physical safety of such intimate partner or
child; or

(ii) By its terms explicitly prohibits the use, attempted use
or threatened use of physical force against such intimate partner
or child that would reasonably be expected to cause bodily injury;
or

(8) Has been convicted of a misdemeanor offense of assault or
battery either under the provisions of section twenty-eight,
article two of this chapter or the provisions of subsection (b) or
(c), section nine of said article in which the victim was a current
or former spouse, current or former sexual or intimate partner,
person with whom the defendant has a child in common, person with
whom the defendant cohabits or has cohabited, a parent or guardian,
the defendant’s child or ward or a member of the defendant’s
household at the time of the offense or has been convicted in any
court of any jurisdiction of a comparable misdemeanor crime of
domestic violence.

Any person who violates the provisions of this subsection
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one
thousand dollars or confined in the county jail for not less than
ninety days nor more than one year, or both.

(b) Notwithstanding the provisions of subsection (a) of this
section, any person:

(1) Who has been convicted in this state or any other
jurisdiction of a felony crime of violence against the person of
another or of a felony sexual offense; or

(2) Who has been convicted in this state or any other
jurisdiction of a felony controlled substance offense involving a
Schedule I controlled substance other than marijuana or synthetic
cannabinoid, a Schedule II or a Schedule III controlled substance
as such are defined in sections two hundred four, two hundred five
and two hundred six, article two, chapter sixty-a of this code and
who possesses a firearm as such is defined in section two of this
article shall be guilty of a felony and, upon conviction thereof,
shall be confined in a state correctional facility for not more
than five years or fined not more than five thousand dollars, or
both. The provisions of subsection (c) of this section shall not
apply to persons convicted of offenses referred to in this
subsection or to persons convicted of a violation of this
subsection.

(c) Any person prohibited from possessing a firearm by the
provisions of subsection (a) of this section may petition the
circuit court of the county in which he or she resides to regain
the ability to possess a firearm and if the court finds by clear
and convincing evidence that the person is competent and capable of
exercising the responsibility concomitant with the possession of a
firearm, the court may enter an order allowing the person to
possess a firearm if such possession would not violate any federal
law: Provided, That a person prohibited from possessing a firearm
by the provisions of subdivision (4), subsection (a) of this
section may petition to regain the ability to possess a firearm in
accordance with the provisions of section five, article seven-a of
this chapter.

NOTE: The purpose of this bill is to criminalize possession
and distribution of synthetic cannabinoids in the same manner and
with the same penalties as marijuana.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.